Illicit drug use in the EU: legislative approaches
February 2005
This paper offers an overview of the current legal provisions on the use and possession of drugs for personal use in the EU Member States. In addition to documentary resources (the European Legal Database on Drugs – ELDD) and the current work of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) in the field, some thirty studies and other publications were consulted. The study concludes that, in many countries, personal use of illicit drugs is considered a relatively minor offence, incompatible with custodial sanctions.
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The first part of the study focuses on the international legal framework governing drug use and possession; the second part offers a summary of the various legal approaches to the personal use of drugs at national level. These range from tolerance of the use of certain drugs to penal sanctions for any use of any substance. Also explored are the concepts of decriminalisation and depenalisation of drug use as well as the relationship between penal and health interventions.
Conclusions
The relevant United Nations Conventions invite signatory countries to prohibit the use of drugs for other than medical and scientific purposes, but apparently leave the type of sanctions to be applied to the discretion of each country.
In the EU Member States, notwithstanding different positions and attitudes, we can see a trend (in many of them) to conceive the illicit use of drugs (including its preparatory acts) as a relatively ‘minor’ offence, to which it is not adequate to apply ‘sanctions involving deprivation of liberty’. In these countries, prisons sentences do not seem to be the most effective instrument to prevent (and punish) drugs use. Even though use and possession of drugs for personal use are among the majority of drugs related offences reported to the judiciary, indeed the courts seems to prefer treatment, other social support measures and to a certain extent sanctions not involving deprivation of liberty, such as discontinuance, suspension of proceedings, cautioning and fines, in particular and for very small quantities, when simple use of drugs is not accompanied by aggravating circumstances.
The analysis of national drug strategies, legal literature, laws, and judicial practice, suggests that in several EU countries public action is be based on a) a more powerful focus on treatment rather than on criminal punishment; b) on a sense of disproportion between custodial sentences (often involving a criminal record) and illicit use of drugs; and c) on the perception that cannabis is less dangerous to health compared to other drugs. Indeed, the increased recourse to social welfare and treatment systems (for drugs such as heroin, cocaine, amphetamines and, more recently,
cannabis), rather than custodial sentences is an integral part of the legal approach to drug use.
However, it would be a mistake to interpret this as a ‘relaxation’ or a ‘softening’ of drug laws in the EU. And many of the 10 new EU Member States still consider use or possession for personal use as a criminal offence punishable by sanctions of ‘deprivation of liberty’ (e.g. imprisonment).
